On March 12, 2013, the National Labor Relations Board (NLRB) announced its decision to file a petition for certioriari with the Supreme Court. The NLRB wants the Court to reverse or clarify the decision in “Noel Canning” where the D.C. Circuit held that the recess appointments to the Board by President Obama were invalid. In order for the NLRB’s decisions to be effective there must be a quorum of the Board that approves the decisions. If the D.C. Circuit decision is affirmed or the Supreme Court denies the petition, all the decisions of the Board without a proper quorum would be potentially unenforceable according to the D.C. Circuit’s holding of an invalid quorum. Employers have considered resisting decisions made at the time that there was an invalid quorum. The Supreme Court has a choice whether or not to grant the petition. The petition is due on April 25, 2013. This challenge will be closely watched even though it may take some time before we hear from the Supreme Court.
Carol Keough March 12, 2013